Family Law & Divorce

Family Law Courts

This is a broad collection of information about Family Law and the Courts.

For example, it explains the principles that apply in children's matters and in property and money matters. It also explains steps that you can take yourself to sort things out after a separation and where to get help if you need it.

Family Court of Australia

De Facto Relationships

Property Division on Separating

The Property (Relationships) Act applies to relationship between 2 adult persons (whether or not related by family and irrespective of their gender) who live together as a couple on a genuine domestic basis. This means that the law applies to same sex couples and other situations that were previously not recognised.

To be entitled to make a claim for property settlement:

the relationship must have existed for at least a total of 2 years

there is a child of the relationship

you are caring for a child of the other party and that there would be a serious injustice to you if no order is made

there would serious injustice if no order was made bearing in mind your substantial financial or non-financial contributions to acquiring the property

Property Division on Death

Children

The same laws apply to the residence and care of children whether the parents are married, in a de facto relationship or have never lived together.

Prenuptial Agreements

It is possible to enter into a legally binding agreement at the commencement of the domestic relationship. There are strict legal requirements to be observed and you must see a lawyer.

Prenuptial Agreements

Prenuptial Agreements are a binding legal agreement between a couple, agreeing as to how they will divide their property if they were to separate. These may be signed prior to marriage or during the marriage.

It is not just movie stars who sign these agreements. Usually though, one party has significantly more assets than the other party and is trying to protect these.

There are many arguments for and against such agreements. There are also very strict legal requirements to be observed and you must see a lawyer.

Review Your Will

Marriage revokes any Will previously made unless the Will refers to contemplation of that particular marriage. People often separate but forget to change the Will which could mean that their spouse still inherits their estate. When a divorce becomes final that part of your Will that relates to your former spouse is revoked not the whole Will. It is important to seek legal advice about the impact of this on your Will. Whenever a married couple separate, each party should review his or her Will.

You should also review your Will, Power of Attorney and any other authority that you have given you spouse or partner to sign anything on your behalf.

Financial Security

You should consider changing pin numbers and passwords to any bank accounts or financial records that your former has had or may access to.

Maintenance & Child Support

Maintenance for children is known as child support. Both parents are liable for supporting their children financially. The amount that is paid is worked out by a formula. There are calculators on the Child Support Web site that work out how much support should be paid.

If either parent is unhappy with the Child Support Agency's assessment and they have exhausted all review processes, then an application can be made to the Court.

It is also possible in some circumstances for the parties to come to their own agreement about child support. Some types of agreements are permanent and others can be changed.

You may also have to pay/or be entitled to spousal maintenance. This is like "alimony" - it is different to child support and is for the support of your former partner or your support. It can be paid/received in addition to child support. (For information on de facto relationships, please see the special information under the De facto Relationships topic on this page).

This form of support can be obtained by an order of the court. The individual financial circumstances of each party are considered before an order is made by the court.

Please read our warning on that page "Be careful using these resources".

The Law is not always as straightforward as it appears. We have not included any information about when and how to use that information or any traps. We assume that the Lawyers will know this.

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Child Issues

When a relationship ends and there are children of that relationship, both parents usually wish to maintain contact with the child or children. The way in which the parents (called the husband and wife by lawyers and the Courts) establish and maintain this contact can be made formal through the Courts, to give the parties some certainty as to the arrangement.

The Court Orders dealing with child issues are called live with orders and time spent with orders. These address issues such as :

Who will the child live with?

When can a child see a parent and under what conditions?

What school will the child go to?

Will the child be brought up according to a certain religion?

Questions surrounding the child's medical treatment

Children's needs and their best interests are the paramount or first consideration in any separation or family breakdown.

When determining what are the best interests of the child the court must look at 'primary' (most important) considerations and 'secondary' (other) considerations.

The primary considerations are:

the benefits of children having a meaningful relationship with both parents, and

their need to be protected from harm.

In making decisions about what are the best interests of the child the Court must have regard to the following principles:

That children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together.

That children have a right to spend time and communicate on a regular basis with both their parents and other people significant to their care, well-being and development (such as grandparents and other relatives).

That parents jointly share duties and responsibilities concerning the care, welfare and development of their children

That parents should agree about the future parenting of their children.

That children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture)

Although there may be a presumption of equal shared responsibility for children, this is one of a number of matters to be considered and it does not mean that the children will automatically spend equal time with each parent.

Sometimes a formal arrangement addressing these issues is not necessary as some parents are able to come to an amicable arrangement without assistance.

Should I see a Lawyer?

Because of its highly personal nature, Family Law is full of heartfelt disputes that often end up in Court. Court cases (of any kind) are always fraught with uncertainties about how long they will go on for, what they will cost and who will win.

Lawyers are bound by strict rules of confidentiality. So you can see them at any stage for advice, even prior to separation.

If the issue is the care of children then you should see Relationships Australia and take their advice on resolving the issues before seeing a lawyer. The service is free.

Child maintenance issues are handled by the Child Support Agency (on behalf of the Carer). Their service is also free. Lawyers usually only become involved in child maintenance issues that are well out of the ordinary run of things, or to assist the paying parent.

In cases of spousal maintenance (the Americans call it alimony) and property settlement we always recommend that your first step should be to see a solicitor. If you are intending to speak to your spouse yourself or want to try mediation; it is an excellent idea to find out in advance from an experienced independent lawyer what your rights and options are.

A lawyer will become involved as much or as little as you wish. Many people lack experience or confidence in these situations, and it is all the harder when it is so personal and so important to you.

Preparing for a Visit to a Lawyer

The following information will be useful to your lawyer. You can save time and money by preparing the following information for your lawyer prior to your interview, and providing it to your lawyer at the interview:

Your name, the name of your spouse and children.

Your contact details such as email address.

Where you are living.

Where is your spouse living - does he/she have a lawyer?

Significant dates such as birthdays, marriage, separation etc.

Full details of your assets and liabilities (including those of your spouse).

Financial information such as current bank statements, financial statements of any business and superannuation member statements.

Details of any current arrangement with the children of the marriage - if there are any.

A written history of your relationship including property owned at the start of the relationship

What you want the lawyer to do for you and the result that you ideally want them to achieve.

Your views on the outcome that you think that you and your former partner could each live with.

Remember to bring along any relevant documentation such as Certificates and Court Documents.